COURT OF APPEAL FOR ONTARIO
Gillese, Juriansz and LaForme JJ.A.
BETWEEN
Derrick Randall and Brenden Randall, minors by their Litigation Guardian Nell Herder-Randall, Charles Randall and the said Nell Herder-Randall personally
Plaintiffs (Appellants)
and
Lakeridge Health Oshawa, M. Koziar, C. Rowe, R. Mullin, E. Cheah, P. Lai Fatt, H. Curtis, M. Solotorow, N. Aitken, D. Shea, J. Vanderzwet, M. Tokic, S. Kelly, J. Robinson, J. Aaron, M. Doshen, S.M.C. Harris, P. McConkey and J. Doe 13
Defendants (Respondents)
Gavin MacKenzie and Hilik Elmaliah, for the appellants
Deborah Berlach, for Lakeridge Health Oshawa, H. Curtis, N. Aitken, D. Shea, J. Vanderzwet, M. Solotorow, M. Doshen and S.M.C. Harris
Anne E. Spafford and Cynthia Kuehl, for M. Koziar and C. Rowe
Heard: March 2, 2010
On appeal from the judgment of Justice Bruce A. Glass of the Superior Court of Justice dated February 17, 2009, with reasons reported at [2009] O.J. No. 683.
1Derrick Randall was born by emergency Caesarean section on February 27, 1991, after 18 hours of induced labour. Prior to birth, he suffered a deprivation of oxygen that resulted in brain damage. Today he has severe disabilities. He and his family sued the hospital and the doctors and nurses responsible for his care at birth. The trial judge dismissed the action, finding that there was no negligence.
2I would allow the appeal for two reasons. First, the trial judge’s mode of analysis was flawed in that he decided the issue of causation before adequately considering the standard of care issues raised, with the result that he failed to deal with the appellants’ claim properly. Second, and perhaps as a result, the trial judge’s reasons are insufficient to justify and explain to the appellants why their action was dismissed and they do not provide an adequate basis for this court to properly consider the appeal. I would order a new trial restricted to the issue of liability.
A. FACTUAL BACKGROUND
3Derrick’s mother, Nell Herder-Randall, went to Lakeridge Health Oshawa (Lakeridge) early in the morning on February 26, 1991. While she was not yet in labour, her membranes had ruptured at 11:55 p.m. on February 25 and she was moderately dilated. She was admitted to Lakeridge at 2:32 a.m. on February 26.
4When Ms. Herder-Randall did not have contractions, her family physician, Dr. Koziar, ordered intravenous oxytocin in order to induce labour. The oxytocin administration was started at 9:30 a.m. The oxytocin dosage was incrementally increased approximately every 15-20 minutes until the maximum dosage was reached at noon or shortly thereafter. Electronic fetal heart rate monitoring was engaged for Ms. Herder-Randall at 9:33 a.m., though there were times when the equipment was not connected or when tracing of the monitoring was not recorded.
5Labour ensued. Ms. Herder-Randall was given an epidural for pain. At 3:30 p.m., Ms. Herder-Randall reported that her contractions were one minute apart. At 5:30 p.m., Dr. Koziar examined Ms. Herder-Randall again and observed “fetal heart good, cervix effaced two to three centimetres, vertex minus one, firmly in pelvis…. Impression, good progress, probably more rapid now.” However, when labour had not progressed later in the evening, Dr. Koziar called on Dr. Rowe, an obstetrician at Lakeridge. Dr. Rowe assessed Ms. Herder-Randall at 9:50 p.m. He felt that Ms. Herder-Randall appeared to be making reasonable progress but indicated that he would continue to observe her.
6At 12:20 a.m. the next morning of February 27, Dr. Koziar examined Ms. Herder-Randall and found the cervix was nine centimetres dilated and the station was still at vertex minus one (as it had been at 5:30 p.m. the previous evening). Nurse Harris, the nursing team leader for the night shift, took over Ms. Herder-Randall’s care from Nurse Solotorow at approximately 2:10 a.m. Nurse Harris checked Ms. Herder-Randall at this time, though it does not appear she did a vaginal examination. She looked at the last ten minutes of fetal heart rate monitoring and recorded moderate contractions once every three minutes.
7Nurse Harris examined Ms. Herder-Randall again at 2:40 a.m. She found the cervix was still nine centimetres dilated and the station was at about vertex minus two. She realized that the dilatation and descent did not show any progress despite the oxytocin running. The fetal heart rate was about 145 to 152 beats per minute. Her notes do not indicate that she advised a physician of the status of the labour.
8Dr. Koziar delivered another baby who was born at 3:02 a.m.
9At 3:08 a.m., Nurse Harris examined Ms. Herder-Randall again. There had been slight further dilation of the cervix. Between 3:14 a.m. and 3:30 a.m. there were four decelerations of the fetal heart rate, at 3:14 a.m., 3:17 a.m., 3:23 a.m., and 3:26 a.m. The first mention of these events in Ms. Herder-Randall’s records is in Nurse Harris’ 3:30 a.m. entry, which noted “fetal bradycardia” and indicated that she turned Ms. Herder-Randall from her right side to her left side and started her on oxygen by mask at six litres per minute. Her notes do not indicate that she advised a physician of these events, and she did not testify that she had.
10At 3:35 a.m., Drs. Koziar and Rowe examined Ms. Herder-Randall. Dr. Rowe determined the fetus was in distress when there was a sharp deceleration in the fetal heart rate to about 60 beats per minute. Dr. Rowe ordered an emergency C-section.
11Ms. Herder-Randall was transferred to the operating room from the labour and delivery area and the incision commencing the operation was made at 3:59 a.m. Derrick was born at 4:01 a.m. on February 27, 1991 severely compromised.
12Derrick was born with a brain injury because he suffered a deprivation of oxygen during several minutes prior to his birth. As a result of his brain injury, Derrick has cerebral palsy, a developmental disorder, and developmental delays. He is a quadriplegic. He uses a wheelchair or can walk if he uses a wall for support. He cannot use public transportation because of his seizure disorder. He cannot eat without assistance, cannot read, and has difficulty speaking to the point that he is hard to understand.
13The appellants alleged that the damage to Derrick’s brain could have been avoided if he had been delivered earlier. They sued Lakeridge and the nurses involved in Ms. Herder-Randall’s care (the “Hospital respondents”) and Drs. Koziar and Rowe in negligence.
B. THE DECISION AT TRIAL
14After a 42-day trial, the trial judge dismissed the action. He concluded that the factual cause of the injury to the fetus was known but the harm was not due to the negligence of any of the respondents. The fetus had been deprived of oxygenated blood. However, the cause of the deprivation could not be explained or inferred from the evidence. He stated that the “bottom line” was that “sometimes unexplained events occur at child birth” and the “result can be the birth of a brain-damaged baby”. This was one of those cases.
15While the trial judge noted that even the Hospital respondents’ nursing care expert testified there were instances where the nurses failed to meet the standard of care, he found that the nurses, like the other respondents, “met the over-all standards of care applicable to them”.
16The trial judge did refer to some examples of the nurses’ specific failures to meet the standard of care in his reasons. The nurses did not contact a physician about the fetal heart rate decelerations at 3:14 a.m. and 3:17 a.m. on February 27. There were times when the nurses did not record fetal heart rate changes. The trial judge also referred to the evidence that there were times when the monitor for this tracing was not connected to Ms. Herder-Randall. For example, at one point the monitor was taken to be used with another patient.
17However, the trial judge accepted expert evidence that there was no cause for concern with lapses in the fetal heart rate tracings in this case. The trial judge concluded that the non-continuous fetal heart rate monitoring did not place Ms. Herder-Randall or the fetus at risk. He noted that it might have been concerning if there were long periods of time without fetal heart rate tracing.
18While he referred to these examples in passing, the trial judge found it unnecessary to itemize the various ways in which the nurses failed to meet the standard of care because he concluded that any of their departures from the standard of care did not cause Derrick’s injuries. The trial judge found “Derrick’s brain injury resulted from a deprivation of oxygen during several minutes prior to his birth”. He concluded that Derrick’s injuries at birth were not the result of the actions or lack of actions of anyone.
19The trial judge rejected the appellants’ contention that the nursing care was inadequate and specifically that there should have been one-to-one nursing care after an induction with oxytocin. He found that that the nursing care was adequate. He found that the standard of care in 1991 did not require one-to-one nursing care. While one-to-one nursing care was ideal, the reality of hospital life in 1991 meant that such care was not always possible.
20The trial judge specifically rejected the appellants’ submission that “Dr. Koziar and Dr. Rowe along with the nurses at Lakeridge simply waited too long and found themselves experiencing an emergency that flowed from their actions or lack of actions”. The trial judge held that the medical team acted with appropriate haste once it was determined at 3:36 a.m. that fetal distress was present. Importantly, he found as a fact that the fetus was not in distress prior to 3:35 a.m. After the fetus went into distress, the emergency C-section was performed with proper dispatch in accordance with the standard of care.
21The trial judge noted that while all the experts who testified agreed that the brain injury resulted from a deprivation of oxygen during several minutes prior to Derrick’s birth, no one could provide the reason that the lack of oxygen occurred. He commented that the best information was “that the insult occurred somewhere between the 10 minutes immediately prior to the birth and 03:35 hours on February 27”, i.e. after the time the fetus had gone into distress.
22Thus, the trial judge concluded that no one “caused the near acute hypoxic ischemic insult that led to the brain damage to Derrick.” He wrote, “No one was negligent. Therefore, no one is liable. Derrick Randall sustained brain injuries at birth, but not as the result of the actions or lack of actions of anyone.” He explained:
The bottom line is that sometimes unexplained events occur at child birth. The result can be the birth of a brain-damaged baby. This is a case in which the insult cannot be explained or inferred from evidence. Rather, Derrick's birth is an example of the fetus being deprived of oxygenated blood for some unexplained reason. When such an event occurs, the factual cause of the injury to the fetus is known. Since there can be no negligence attributed to anyone in light of this finding, there is no tortious action to relate to the injury.
23The trial judge went on to assess damages in the amounts of $11,168,054 for Derrick, $670,603 for his mother and father, and $134,468 for OHIP, for a total of $11,973,125.
C. ISSUES
24The central thrust of the appellants’ position on appeal was that the standard of care required the nurses to notify a physician that there had been an arrest of labour at 2:40 a.m. on February 27. They submitted that had the nurses advised the physicians of the arrest of labour, the baby would have been born by non-emergency C-section prior to his suffering the oxygen deprivation. The appellants advanced this position by raising the following issues:
Did the trial judge make palpable and overriding errors of fact that materially affected the outcome?
Did the trial judge err in failing to apply the appropriate standard of care in the circumstances of this case?
Did the trial judge err in failing to find that the failures to meet the standard of care caused Derrick’s injuries?
Are the trial judge’s reasons sufficiently transparent and accessible to justify the result, to explain to the plaintiffs why they lost, to permit meaningful appellate review and to satisfy the public that justice was done?
D. ANALYSIS
1) Palpable and Overriding Errors of Fact
25The appellants submit that the trial judge made a palpable and overriding error by finding that Derrick still would have suffered brain injuries had he been born earlier at 2:45 a.m. instead of at 4:01 a.m. Such a finding of fact, if the trial judge made it, would preclude the theory on which the appellants’ appeal is based. The appellants say that the impugned finding was made in para. 36 of the trial judge’s reasons:
There is no criticism of the actions of the medical personnel in the operating room. I interpret the Plaintiffs’ claims to be founded on the submission that Dr. Koziar and Dr. Rowe along with the nurses at Lakeridge simply waited too long and found themselves experiencing an emergency that flowed from their actions or lack of actions. They highlighted fetal heart rate accelerations and decelerations during the course of labour. Dr. Farine and Dr. Bloom testified that if Derrick had been born around 2:45 a.m., he would not have encountered brain injuries. I do not find such to be correct. [Emphasis added.]
26I do not read this paragraph the way the appellants do. I understand the last sentence of the paragraph to refer to the plaintiffs’ claims summarized earlier in the paragraph. The trial judge states in the paragraph that he finds it is not correct that the doctors and nurses at Lakeridge “simply waited too long and found themselves experiencing an emergency” that flowed from the respondents’ actions or lack of actions.
27When the paragraph is read in context of the whole of the reasons it is clear that the trial judge did not find as a fact that if the baby had been delivered around 2:45 a.m. he would still have encountered brain injuries. The evidence of the experts was clear that the oxygen deprivation occurred in the minutes before birth. The trial judge summarized that evidence at para. 38 of his reasons:
For example, Dr. Hill concluded that Derrick’s injuries were sustained in 8-10 minutes before delivery whereas Dr. Macnab thought within the final 10 minutes before birth. Dr. Yager for the defence thought that the time frame for injury was within the last 5-10 minutes before birth. Dr. Armstrong was at the final 10-15 minutes.
28Only Dr. Armstrong indicated a time frame greater than ten minutes, and he was clear the damage occurred in the final 10-15 minutes. Thus, the expert evidence indicates that the earliest the brain damage could have occurred was 3:46 a.m.
29In para. 35 of his reasons, the trial judge stated that he was satisfied that the damage occurred somewhere between ten minutes immediately prior to birth and 3:35 a.m. He should not be understood to state, in the very next paragraph, if Derrick had been born around 2:45 a.m., he would still have encountered brain injuries. Clearly, birth at 2:45 a.m. would have preceded the oxygen deprivation.
30While I conclude the trial judge did not make the finding the appellants attack, I do think he was imprecise in his comment that that “the damage occurred somewhere between ten minutes immediately prior to birth and 3:35 a.m.” Understood literally that comment excludes the ten minutes immediately prior to birth in which all the experts except Dr. Armstrong placed the occurrence of the damage. I believe the point the trial judge was making was that the damage suffered in the ten minutes before birth occurred after the fetus went into distress at 3:35 a.m. There was no evidence indicating the brain damage occurred earlier than 3:46 a.m.
31In any event, on the evidence, if the baby had been delivered before 3:35 a.m. he would not have suffered brain damage. The trial judge made no finding of fact about the timing of the birth that precludes the appellants’ theory that the respondents simply waited too long and allowed a situation of emergency to develop. Nonetheless, the trial judge did reject that theory. He stated:
There is no evidence that the fetus was in a precarious position earlier so that his birth should have been advanced. If there was no indication that there was an emergency, it is reasonable to accept that the wait and see approach to the delivery of Derrick should have continued. I do not see any indication that the Defendants simply waited too long and got themselves into trouble.
32The appellants contest this finding. The finding, though, is not a pure finding of fact. It involves the application of the standard of care. It is necessary to examine it in light of the applicable legal principles and I do so in the next section.
2) Standard of Care
33The appellants submit the trial judge erred in law in the way he treated the standard of care and causation. I agree.
34The trial judge dealt with causation first and with the duty of care and standard of care afterwards. His conclusion on causation was that negligent acts, if there were any, did not cause the harm suffered. He reasoned that since the fetal oxygen deprivation occurred shortly before Derrick was born and its cause could not be identified, whatever happened earlier in his mother’s prolonged labour could not be responsible for the damage. Having found that the respondents did not cause the damage, he was able to conclude that the nurses, for example, met the “overall” standard of care despite recognizing the evidence that they had failed to meet the standard of care in particular instances. In his analysis, it was unnecessary to deal with the particular failings in light of his conclusion on causation.
35In proceeding in this way the trial judge erred. Findings of breaches of the standard of care should be made first, and factual causation analyzed later in light of those findings. This is most clearly stated in Bafaro v. Dowd (2010), 2010 ONCA 188, 260 O.A.C. 70 (C.A.), where Laskin J.A. stressed that the question whether the standard of care was breached should be decided before the question of factual causation. While Bafaro was not available at the time of this decision, the analytic framework has previously been set out as Laskin J.A. notes at paras. 35-36:
[T]he question whether the standard of care was breached should be decided before the question of factual causation. In other words, the issue of factual causation arises after the trier of fact has found that the defendant breached the standard of care. That is evident from Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311] itself, where Sopinka J.’s entire discussion of causation was predicated on an uncontested finding of negligence against the doctor.
The distinction between standard of care and causation, and the necessity to determine the former before the latter, is also evident in the recent Supreme Court of Canada judgment on causation, Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.
36Here, the appellants submit it was incumbent on the trial judge to make findings on the evidence of the respondents’ failures to meet the standard of care, and then to separately consider whether those failures, individually or cumulatively, caused or failed to prevent the fetal acute hypoxic ischemic insult. Instead, the trial judge generally concluded that the nurses met their “overall” standard of care without discussing and making specific findings in regard to the appellants’ position.
37The appellants submit the trial judge’s finding that “[i]f there was no indication that there was an emergency, it is reasonable to accept that the wait and see approach to the delivery of Derrick should have continued” is not supported by the evidence. They submit that the evidence establishes that the “wait and see” approach cannot be followed indefinitely, and a point is reached when it is simply time to deliver the baby. Without abandoning their other arguments, the position the appellants stressed on appeal was that there was an arrest of labour at 2:40 a.m., and that the standard of care required the nurses to notify a physician of the arrest of labour, and required the physicians to proceed with a non-emergency C-section. The appellants argue that the failure to do so resulted in the baby not being delivered before he suffered the oxygen deprivation that occurred after 3:46 a.m. The appellants must establish that these findings, which they say the trial judge failed to make, were available on the evidence. I turn to an assessment of the evidence.
38To summarize the situation that existed at 2:40 a.m., Ms. Herder-Randall’s membranes had been ruptured more than 27 hours, she had been in hospital for more than 24 hours, she had been receiving oxytocin for more than 17 hours and at maximum or near maximum dosage for more than 14 hours, and there had been at least two occasions when the fetal heart rate tracings had been non-reassuring. On one of those occasions Ms. Herder-Randall had been given oxygen. Descent had been arrested for more than nine hours.
39The first question is whether there was evidence to support a finding that there was an arrest of labour at 2:40 a.m.
i. Was there an arrest of labour at 2:40 a.m.?
40Dr. Koziar examined Ms. Herder-Randall at 12:20 a.m. and found that the cervix was nine centimetres dilated. More than two hours later, when Nurse Harris examined her again at 2:40 a.m., the cervix was still nine centimetres dilated.
41Dr. Lowry, the respondent physicians’ family medicine expert, stated that a lack of progress in dilatation after two hours constitutes an arrest of labour that would require a consultation with the obstetrician and a conversation with the patient in order to consider the need for a C-section. He testified as follows:
Q: Dr. Lowry, back in 1991, under what circumstances would you diagnose an arrest of labour?
A: I think if you don’t have any progress in dilatation after two hours.
42Dr. d’Anjou, an obstetrical expert called by the Hospital respondents, stated that labour is dysfunctional when it has been arrested for more than two hours.
43Dr. McGrath, an obstetrical expert called by the respondent physicians, indicated that a care provider would be required to look at progress over a two to four hour period and it would be a judgment call in terms of when a labour is called a failure to progress.
44Dr. Sprague, the Hospital respondents’ nursing expert, testified that arrest disorders are diagnosed when dilatation has ceased for more than two hours in the active phase of labour.
45A Policy Statement issued by the Society of Obstetricians and Gynaecologists of Canada (SOGC) for diagnosing dystocia (arrest of labour) that applied in 1991 was in evidence. It indicated that a diagnosis of dystocia could be made when less than 0.5 centimetres per hour increase in dilation was observed over a four-hour period. According to this criterion, Ms. Herder-Randall’s labour would not have been considered arrested at 2:40 a.m. However, the Policy Statement contains a comment that “this statement is confined to nulliparous women at term with a single, vertex presentation in spontaneous labour…”. Ms. Herder-Randall’s labour was not spontaneous; she had been under induction for some 17 hours. Notwithstanding this comment, Dr. Lowry did not agree that the Policy Statement was restricted to cases involving spontaneous labour. The trial judge did not allude to this Policy Statement and what he might have made of it is not clear.
46While Dr. Lowry’s testimony could support the finding that there had been no arrest of labour at 2:40 a.m., there was ample evidence upon which the trial judge could have found that there had been one. He did not, however, address the question.
ii. What is the standard of care for an arrest of labour?
47The next question is what the nurses’ standard of care was in the face of an arrest of labour, assuming there was one.
48Nurse Harris acknowledged it was her responsibility to assess the progress of labour. She admitted it was a breach of the standard of care for a nurse to not bring an arrest of labour to the attention of a physician. She testified as follows:
Q: So, if a mother is in labour and is experiencing adequate contractions and there is no progress of labour for two hours, that would be considered an arrest of labour, correct?
A: If there’s no progress in dilatation or progress of the presenting part descending, yes, that is blockage of labour.
Q: And that would be…called differently, arrest of labour, correct?
A: Yes.
Q: As a nurse you had the responsibility to assess the progress of labour of the patient to whom you provided care, correct?
A: That’s correct, yes.
Q: And if in the process of providing care to that patient you came to the conclusion that despite adequate uterine activity there is no progress for two hours, that would cause you to call a physician, correct?
A: As long as there has been adequate contractions, yes.
49Nurse Solotorow (the nurse caring for Ms. Herder-Randall during the night shift on February 27 until approximately 2:10 a.m.) also acknowledged this responsibility and noted that in 1991 she would have called a physician in the presence of an arrest of labour. She said:
Q: …you would agree with me that it is a nursing responsibility to assess the progress of labour?
A: That’s right.
Q: And if there are any abnormalities in the progress of labour, it is the nurse’s…responsibility to notify the physician immediately, correct?
A: That’s right.
Q: I take it you also knew in 1991, Ms. Solotorow, that if there was no change in cervical dilatation for two hours, this is something that you would call a physician for?
A: Yes, I would expect so.
Q: And the reason you would do that is because…you knew if there was no cervical dilatation over a two hour period, then there is an arrest of labour, correct?
A: Yes, I would imagine.
50Dr. Sprague testified that the nurse should have called a physician if an assessment any time after 1:00 a.m. showed less than full dilatation (ten centimetres).
51Dr. Farine, the appellants’ obstetrical expert, explained that:
Once dilatation has been arrested for what is determined to be the maximum length when it is allowable – in that specific case, no change for two hours – then you have to resort to a corrective measure. Oxytocin was out of the question in this scenario and the force should have been a caesarean delivery. And that’s based on dilatation, per se.
And when the patient was examined at 2:45 [sic], she was still 9 cm and the station did not change for quite a while at that point. And this is a period of two hours and 25 minutes. And just based on dilatation by itself, a cesarean section should have been performed at that point. If you add up the descent, it should have been done before….So, based on the combination of the factors, what I wrote in my report and what I am saying very clearly now, that this lady should have had a caesarean section probably around 01:20, 01:40, and at the latest at 2:40, two hours later from the time she was found to be 9 cms. And the last sentence of this paragraph in my report says that if a caesarean section would have been done at that stage, it was very likely that there would have not been as severe hypoxia damage to the baby.
So, the only other option was delivery and because this patient was not fully dilated, the only option for delivery was a caesarean section….And then by 2:40 you had the combination of the following elements – no dilation, no descent, excessive contractions and non-reassuring fetal heart rate and the inability to do anything about it….So, overall I think that there was a cascade of things in here. I think that we have to look at different aspects of where we – I mean, of this labour in terms of the progress of labour, the condition of the baby as he went through and the fact that this induction was – breached many of the rules and guidelines. And this resulted in the compromise of this baby eventually.
52Dr. Bloom, the appellants’ family medicine expert, testified as follows regarding the standard of care in an arrest of labour:
[T]he nurse is certainly part of the primary health team in managing Ms. Randall’s labour, so she clearly at that time should have been aware of everything that’s led up to this point in the labour and would have known that this has been a slow progress, that the assessment that she made at 2:40 is identical in dilation to the assessment that was made at 00:20 by Dr. Koziar….at that point I suggest the standard of care would be for her to contact Dr. Koziar as the primary care provider, the most responsible physician, to apprise her of the situation, that your patient has been labouring now for two full hours, there has been no further descent…that Dr. Koziar should come, attend, confirm – perhaps confirm that assessment and then where do we go from here?
53Dr. Wood, the appellants’ nursing expert, opined that Nurse Harris should have called a physician to carry out the 2:40 a.m. assessment, but once she had carried it out herself, she should have called a physician to report her findings. She said:
Even so, her findings definitely suggested there was no progress in this labour as far as the station and cervical dilation goes and she should have called the physician for that reason alone, but she shouldn’t have done the vaginal examination…
54Dr. McGrath testified in cross-examination that “[i]f over a period of time there was evidence that progression had stopped, then I think the nurses would have or should have called Dr. Koziar.” However, he added that “if the mother is well and the baby is well, it is not an urgent situation in any way.”
55In my view, the evidence in the record provides strong support for a finding that the standard of care required the nurse who noted symptoms indicative of an arrest of labour, in this case Nurse Harris, to notify a physician of the situation.
iii. Did Nurse Harris inform a physician of the arrest of labour?
56The Hospital respondents submit that the evidence was not unequivocal that Nurse Harris failed to report her findings of the 2:40 a.m. assessment to Dr. Koziar. In fact, they submitted that the evidence “strongly suggested” that Nurse Harris had reported her findings to Dr. Koziar. The evidence on which they rely suggested it was Nurse Harris’ general practice to inform Dr. Koziar of the status of a patient’s labour without necessarily charting the communication. Nurse Harris testified:
Q: Did you call either of the two [i.e. Dr. Koziar or Dr. Rowe] to come in and do an exam?
A: I don’t remember that night, but I know that in general practice I may have even gone and talked to Mary [Solotorow] and say this is what I found, I saw that your examination this is what you found, you know, we may have talked about it. If Dr. Koziar was on the unit involved because I notice that there was a delivery at 3:02 and this examination was done at – just around, you know, before three, possibly when Dr. Koziar came on the unit I would have given her report just to let her know what I have found. I mean, in general practice that is what I would have done.
Q: And if you do that in general practice, do you chart that?
A: Not necessarily, no. I mean, good charting, yes, you probably should, but sometimes not necessarily.
57Later, in cross-examination, Nurse Harris said:
Q: And you said that you – that it’s also possible that you would have given Dr. Koziar a report if she was on the unit. Do you remember that?
A: Yes, if it was in the notes, yes. I’m sorry, I just don’t remember everything, but yes.
58Counsel for the doctor respondents submitted that while Dr. Rowe was available, there was no evidence that he was advised of the results of the 2:40 a.m. examination. Dr. Koziar, who did not attend on Ms. Randall from 00:20 a.m. until 03:35 a.m., acknowledged the possibility she may have been advised of the results of the 2:40 a.m. examination. Dr. Koziar’s evidence on this is as follows, in chief at p. 2763:
Q: Okay. Now, do you remember if you were told about the results of that exam at 2:40?
A: No, I don’t remember.
Q: Okay. And would you have seen it on the board?
A: I would have seen it on the board if I was not doing a delivery.
59Counsel pointed out that Dr. Koziar did in fact deliver another baby at 03:02 a.m. While Dr. Koziar did not remember when she became occupied with that delivery and the hospital’s log book was not produced in evidence, Dr. Koziar testified generally she would attend for a delivery a minimum of half an hour before. Dr. Koziar also testified that, in any event, she would not have left the other delivery and the appellants’ expert agreed that the standard of care did not require her to do so. Nevertheless, Dr. Koziar agreed with counsel for the nurses’ counsel’s suggestion that a nurse may have “popped their head” into the other delivery room and advised her of the status of Ms. Herder-Randall’s labour. That question and answer is as follows:
Q: And you may have known before if someone just popped their head into the room and told you?
A: Correct.
60There is no suggestion in the evidence that if a nurse did advise Dr. Koziar of the status of the labour, that Dr. Koziar instructed the nurse to contact Dr. Rowe as she was tied up with another delivery.
61The trial judge failed to make material findings of fact on this evidence. If labour was arrested at 02:40 a.m. and a finding were made that no nurse notified a physician of the status of the labour, this would be highly relevant to whether the nurses and Lakeridge breached the standard of care. If a nurse did advise Dr. Koziar of the status of the labour at 02:40 a.m., Dr. Koziar’s response would be relevant to whether she breached the standard of care.
62The evidence in the record might well have supported findings that the respondents breached the standard of the care at or around 02:40 a.m. by failing to appropriately deal with an arrest of labour, should it be found that such an arrest occurred. The trial judge, however, did not wrestle with this question.
63The trial judge did recognize that there were shortfalls in the respondents meeting their standard of care, but went on to find they met their overall duty of care. Early in his reasons for judgement he wrote:
[The respondents] did not fail to provide their respective medical services; rather, the nurses and doctors provided proper medical care. If they had failed to provide proper care, then one could conclude that some or all of them caused the injuries sustained by Derrick. The nurses, the family doctor and the obstetrician all met their responsibilities. There was nothing done by them that caused the injuries. There was not a lack of action by any of them that caused the injuries.
64Later in the judgment, after discussing a number of instances in which various respondents had breached the standard of care, the trial judge reiterated this point.
Each [respondent] met the overall standards of care applicable to them. Where there was any shortfall of meeting a standard of care, the [respondents] involved did not fail in meeting her or his duty of care. Further, I do not find any negligence on the part of any [respondent] whereby the [respondent] caused any injury or materially contributed to injuries sustained by Derrick.
65The trial judge’s acknowledgement that there were shortfalls in meeting the standard of care and his conclusion that each respondent met his or her “overall” standards of care and duty of care illustrates the error in his analysis. It appears that the trial judge never adequately wrestled with the evidence regarding the respondents’ failure to provide proper care because of his conclusions, made at the outset, regarding causation. This is exactly the kind of danger that Laskin J.A. pointed to in Bafaro.
3) Causation
66The trial judge’s primary causation finding was that the factual cause of Derrick’s brain injuries was the deprivation of the supply of oxygenated blood. The cause of the oxygen deprivation could not be explained or inferred from the evidence. Derrick’s injuries resulted from one of those unexplained events that sometimes occur at childbirth. No action or lack of action of the respondents caused the injury.
67That no action or lack of action of the respondents was the operative cause of the injury does not end the analysis. The trial judge also recognized that the standard of care reasonably required the respondents to minimize the risk of the unexplained events that sometimes occur during childbirth. He specifically dismissed the appellants’ contention that the respondents were negligent in failing to deliver Derrick by C-section earlier and so avoid the emergency situation that later developed. As noted, the trial judge stated that it was reasonable to continue the “wait and see” approach to the delivery as there was no evidence that the fetus was in a precarious position earlier so that the birth should have been advanced. He rejected the appellants’ contention that the respondents simply waited too long and got themselves into trouble without relating his conclusion to the evidence, particularly that relating to the arrest of labour.
68First, on a general level, the following proposition from an authoritative medical text on labour and delivery was put to Dr. Farine who indicated it was representative of medical knowledge in 1991:
Prolonged labour exerts a deleterious effect on both mother and child. The severity of the damage increases progressively with the duration of the labour, the risk rising sharply after 24 hours.
The longer the labour, the higher the fetal mortality and morbidity, and the more frequently do the following conditions occur:
Asphyxia from the long labour itself
Cerebral damage caused by pressure against the fetal head.
69The respondent physicians themselves indicated that the risks increase when the baby is not delivered within 24 hours of the membranes rupturing.
70At 2:40 a.m. Ms. Herder-Randall’s membranes had already been ruptured for 27 hours. The induction of labour by oxytocin, which had been administered for 17 hours, had not worked. Drs. Farine and Bloom testified that a C-section should have been performed once dilatation has been arrested for two hours (discussed above).
71Dr. Lowry was asked what he would do when faced with a lack of progress in dilatation after two hours:
A: I would consider that the patient might need a caesarean section and consult with the obstetricians, talk to the patient.
Q: And how quickly would you be doing these things?
A: Well, if there was concern about fetal distress, you would be doing it quickly. If everything was going along without any fetal distress and mother was not in any distress, then, you know, it would not be urgent, but, you know, you would call the obstetrician to come and assess the patient.
72Dr. McGrath noted that with an arrest of labour, the physician could wait for an hour to deliver by C-section.
Q: And I would ask you to assume, sir, that there isn’t any indication of fetal distress and in that circumstance, how quickly would a caesarean section for failure to progress need to be performed?
A: Then it becomes often more of a comfort issue for the mother. An hour would be a reasonable time. There are sometimes circumstances where it might take longer than that. Often you can sense – I’m sure understand [sic], there’s a level of frustration, I’ve been at this for a long time, let’s just get it done. But from a medical point of view, a delay of an hour would be quite acceptable.
73Dr. Bloom noted that after two hours of no labour progress, a C-section should have been accomplished within half an hour.
A: …she would have been 9 cm at 2:20. And at that point you have a two hour arrest of labour after maximum oxytocin for a good number of hours, with a failure to progress, with the head still at minus 1. Although there has been some issues with the fetal heart in the past, it is good now, so there is no reason to think that this baby is anything but in a good state right now. And that would be the time that I think reasonable clinicians would say, “Mrs. Randall, you have given it your best, it’s time for you to have the baby and we are just going to stop everything and I would recommend a cesarean section.” And I believe that’s what Dr. Rowe probably would have said, Dr. Rowe and Dr. Koziar.
Q: And if that course of management had been adopted, how long after 2:20 in your opinion a cesarean section could have been accomplished?
A: With a half an hour. I think that there are three types of cesarean sections that are organized. One, elective cesareans…On the other end of the scale you have the emergency cesarean, which is what we ended up with in this case. And then in between you have the situation that we had – that I expect we would have had at 2:20, which was you have had a failure to progress, the baby is stable but isn’t progressing. We’ve had some non-reassuring tracings, so we really need to get on with it, we don’t want to wait hours.
74However, in cross-examination, Dr. Bloom said:
Q: And I am just wanting to clarify with you the kind of conditions that will not involve an emergency. So the kind of conditions that you will want to do the C-section, but it’s not an urgent matter, ok? And I just put to you the fact that if there’s been a failed induction of labour, that would fall in that situation.
A: Assuming the fetus is doing well, yes.
Q: Of course. And similarly, if there’s a failure to progress in labour, that’s another situation where you are not running down the hall to do a C-section?
A: I would agree.
Q: And it is safe to wait and monitor?
A: Yes.
Q: Correct? And the SOGC has suggested that urgent cesarean sections should be performed within an hour or two?
A: I would agree with that.
Q: Well you just said yourself…
A: Yeah.
Q: You can wait. And the waiting time will depend on the availability of resources, correct?
A: That would certainly play a factor into it…so we make those decisions on prioritizing all the time.
Q: Right, so that’s a judgment call that you make at the time.
A: That’s correct.
75As can be seen, the expert testimony on the issue of how quickly a non-emergency C-section would have been performed varied. There was, however, ample evidence to support a finding that the physicians, if they had been notified of the results of the 2:40 a.m. examination, would have called for a non-emergency C-section at 2:40 a.m. and would have performed it with relative dispatch. How quickly it would have been performed in fact would depend on the evidence of the availability of operating facilities and staff.
4) Sufficiency of Reasons
76The trial judge does not explain why he concluded it was still reasonable to adopt the “wait and see” approach after 27 hours of labour. In the analysis above, I have concluded that there was sufficient evidence in the record to support the appellants’ position that there was an arrest of labour at 2:40 a.m., that the standard of care required the nurses to inform the doctors of that arrest of labour and required the doctors to call for a non-emergency C-section, and that the C-section would have been performed prior to 3:46 a.m. thus averting the damage to the fetus that occurred in the minutes before birth. This was an evidentiary issue that the trial judge had a responsibility to grapple with and resolve as it may have affected the result.
77It was incumbent upon the trial judge to relate the breaches of the standard of care to his conclusion that the respondents’ lack of actions did not cause or materially contribute to the injuries. I would conclude that the trial judge’s reasons are inadequate to justify and explain the result, to indicate to the appellants why they lost, to provide a basis upon which this court can properly consider the grounds of appeal, and to satisfy the public that justice has been done.
E. CONCLUSION
78The trial judge erred by inverting his analyses of the standard of care and causation. He failed to make findings regarding the breaches of the standard of care first and then to analyze factual causation later in light of those findings. Furthermore, his reasons are inadequate to justify and explain his conclusions. A new trial is necessary.
79I appreciate that the analysis of the evidence in these reasons focuses on some of the respondents more than others. However, I would not relieve any of the respondents from participation in the new trial. There was a general flaw in the trial judge’s mode of analysis and the appellants are entitled to have their claim dealt with according to the proper legal principles. I would allow the appeal and order a new trial limited to liability.
80I would fix the cost of the appeal against of Drs. Koziar and Rowe in the amount of $20,000 including disbursements and applicable taxes. I would fix the costs of the appeal against Lakeridge and the nurses in the amount of $20,000 including disbursements and applicable taxes. The costs of the first trial will be in the discretion of the judge conducting the new trial.
RELEASED: July 28, 2010 “R.G. Juriansz J.A.”
“EEG” “I agree E.E. Gillese J.A.”
“I agree H.S. LaForme J.A.”
